December 01, 2012

Appellate Court Further Expands Traveling Employee Doctrine

December 01, 2012

The Venture-Newberg Prini Stone & Webster v. Illinois Workers’ Compensation Commission et al (Ronald Daughtery) No. 2012IL App 4th 110847WC (Dec. 2012)

The employer (Venture-Newberg) sought pipefitters to work at its Cordova, Illinois plant. Daughtery accepted a position at the plant through his union, Local 137, based in his hometown, Springfield, Illinois. Daughtery had worked for Venture-Newberg on other projects in the past but was not a permanent employee of the company. As a matter of course, Venture-Newberg hired workers through the union and laid off workers when a project was completed.

The position in Cordova was expected to last only a few weeks. The required work was anywhere from six to seven 10- to 12-hour days; pipefitters could also be called in on an emergency basis. Venture-Newberg did not request or require prospective employees to reside near the jobsite, but admitted it would be difficult to work a 12-hour shift and be available for emergencies if the pipefitter were driving more than 200 miles to and from the jobsite on a daily basis.

Daughtery did not claim he was directed to travel any particular route to the Cordova plant. He was neither directed to reside at any particular location near the plant, nor did Venture-Newberg make lodging arrangements for him. Venture-Newberg did not compensate him for travel expenses or time spent traveling to and from the motel where he stayed and the jobsite. The union agreement did not provide for reimbursement of travel or lodging expenses, unless “the contractor has sent [the member] away.”

The day after Daughtery commenced work at the Cordova plant, he was injured in a vehicular occurrence while traveling from the motel where he and a co-worker were staying and the plant. He claimed that it was his “understanding” that Venture-Newberg required workers to be within an hour of the jobsite and that they “had to be available” by phone, which required him to stay “within a certain parameter” of the plant.

Based on these facts, the Arbitrator denied the claim; in a divided decision, the Commission reversed. The Commission conceded that accidents while traveling to and from work are not considered to arise out of or in the course of employment; however, the Commission found an exception, namely that petitioner was a “traveling employee” at the time of the accident. On appeal, the Appellate Court defined a “traveling employee” as: “one who is required to travel away from his employer’s premises in order to perform his job.” The court cited the facts that Daughtery was employed by Venture-Newberg, that he was assigned to work at the Cordova plant some 200 miles from his home, and that the premises where he was assigned to work “were not the premises of his employer” and summarily found him to be a traveling employee.

In the face of a strong dissent, the majority maintained its determination that Daughtery was a traveling employee by citing one of the lead cases on the traveling employee doctrine, Wright v. Ind. Comm’n., stating:

“It would be inconsistent to deprive an employee benefits of workmen’s compensation simply because he must travel to a specific location for a period of time to fulfill his employment, and yet grant the benefits to another employee because he continuously travels.”

The dissent found the majority’s reasoning facile. First, it cited exceptions to the “going to and coming from” rule, the main one coming from the Chicago Bridge & Iron case which the dissent found the majority misapplied. Chicago Bridge & Iron involved a 19-year employee who worked exclusively for that employer, and was compelled to establish a temporary residence out of state while on assignment when injured driving from this residence to the job site. Also, the court in Chicago Bridge & Iron agreed that if the claimant had never worked for CB&I, he would not be a traveling employee. Whereas Daughtery had worked only four short stints for Venture-Newberg in the two years before the accident and could not be considered a longstanding employee. Second, Daughtery was assigned to the Cordova jobsite and not required to travel away from that location. In contrast, the claimant in Chicago Bridge & Iron was an itinerant boilmaker, always required to travel away from his employer’s headquarters.

The dissent also found that the proposition that Daughtery was a traveling employee was “misplaced.” Unlike the claimant in Wright, who was required to travel away from his employer’s premises, Daughtery was not required to travel away from the Cordova site. The dissent held that:

“When an employee is hired on a temporary basis only and assigned by the employer to work at one specific jobsite for the duration of the employment, that assigned location becomes the employer’s ‘premises’ for purposes of the application of the “traveling-employee rule.”

This interpretation is grounded in the true considerations of the rule, which is based on the requirements or of the employer, not a voluntary decision by the employee.

The dissent also took exception to the finding that Daughtery was entitled to benefits because the course or method of travel to the Cordova plant “was determined by the demands or exigencies” of the job, as opposed to Daughtery’s own personal preference. The “exigency exception” has been applied in situations where the employer dictates the terms of the travel and/or reimburses an employee for travel, which was not the case here. Although the Commission held that as a practical matter Daughtery had to stay within a reasonable commuting distance from the plant, neither the Commission nor the court explained how this established Venture-Newberg’s “control over the course or method of” Daughtery’s travel to the Cordova plant.


The holding in this case is disturbing in that it expands the “traveling employee” doctrine to any case where an employee must travel from the place where he lives to work elsewhere. Traditionally, case law required that an employer direct an employee to travel to a “remote” location before he could be considered a traveling employee.

Your editor is not aware of any prior case where an individual has been asked to work beyond commuting distance from his home where an injury to that individual going to and from work at a jobsite was held compensable. The Cordova plant was the site of Daughtery’s work. Thus, this decision stretches the concept of what it means to “travel” to and from one’s employer’s place of business. It is a far cry from the 1970’s cases of Wexler v. Ind. Comm’n. and Wright, prior to which traveling employee cases underwent traditional “arising out of and in the course of” analysis, which included the requirement that an injury must be causally connected to the employment and not the random injuries one can sustain while walking down a street or encounter in places of public accommodation while traveling.

An individual driving into his employer’s central premises has been found to be a ‘traveling employee’ merely because he drove a radio-dispatch truck, albeit he was not being dispatched to any job at the time of the accident. If one reads the Venture-Newberg case closely, this court would have found that case not compensable. But, it did, and now finds this one compensable as well. It appears that this court crafts doctrines for all seasons when it comes to injuries sustained by individuals who argue they are traveling employees. Now all workers hired out of union halls can qualify for traveling employee status.

Noting that two justices dissented, including Judge Hudson from the 5th District, we assume that the employer will request a re-hearing and certification to the Supreme Court. We will look to the action of the Appellate Court on a petition for re-hearing and, if this is successful, to the decision of the Supreme Court on this subject